CLA-2 RR:TC:MM 958886 RFA
Mr. Greg Sebastian, Manager
Finance and Administration
Tokyo Seimitsu America, Inc.
39205 Country Club Drive, Suite C-22
Farmington Hills, MI 48331
RE: Coordinate Measuring Machine (CMM); Optical Appliances and
Optical Instruments; Measuring or Checking Instruments;
Subsidiary; Additional U.S. Note 3 to Chapter 90; HQs
088941, 950947, 952000, 954117, 954682, 955230; HQ 953312,
revoked
Dear Mr. Sebastian:
This is in reference to HQ 953312, issued to you on June 17,
1993, in which Customs classified the VA series Coordinate
Measuring Machine (CMM) under the Harmonized Tariff Schedule of
the United States (HTSUS). In the course of ruling on similar
merchandise, we have determined that HQ 953312 is incorrect.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C.
1625(c)(1)), as amended by section 623 of Title VI (Customs
Modernization) of the North American Free Trade Agreement
Implementation Act (Pub. L. 103-182, 107 Stat. 2057)(1993),
notice of the proposed revocation of HQ 953312 was published on
February 9, 1996, in the Customs Bulletin, Volume 30, Number 9.
No comments were received in response to the notice.
FACTS:
The VA series Coordinate Measuring Machine (CMM) determines
if a particular article's dimensions are the same as the
article's original design. It does this by calculating an
article's coordinates on a given surface area of the machine.
When measuring a particular article, the CMM in question uses
moire fringe scales and an electrical mechanical probe head with
a stylus. The stylus is typically a ceramic or metal shaft
surmounted with a round ball which travels along the part to be
measured while it is mounted on a granite table. The actual
measurement occurs when the probe is triggered by touching the
part being measured, which interrupts an electrical current. The
probe is called an electrical-mechanical probe. The moire glass
scales are interfaced with computers and are used to determine a
particular article's contact point with the CMM. The contact
point is read digitally as coordinates in space through moire
fringe scales.
Moire fringe scales are reflective. They contain two
sections of optical diffraction grating which have a precisely
known number of lines per inch. They are made of either glass or
polished stainless steel. When two sections of optical
diffraction grating are superimposed with the gratings at a
slight angle to each other, a moire fringe pattern is created.
When a beam of light is projected through or reflected from this
field, the relative movement of one line between the two index
gratings will cause the field to go through a complete cycle of
light intensity. A photoelectric cell measures the light across
this field and converts the changes in light intensity into
fluctuations in voltage.
Because the moire fringe scales aided in measuring, Customs
determined that the VA series CMM was classifiable under
subheading 9031.40.00 (now subheading 9031.49.40), HTSUS, as
optical measuring or checking instruments, in HQ 953312, issued
on June 17, 1993.
ISSUE:
Is the VA series CMM an optical measuring or checking
instrument under the HTSUS?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's). GRI
1 provides that classification shall be determined according to
the terms of the headings and any relative section or chapter
notes.
The following subheadings are under consideration:
9031: Measuring or checking instruments, appliances and
machines, not specified or included elsewhere in
this chapter . . . :
9031.49: Other optical instruments and appliances: [o]ther:
9031.49.40: Coordinate-measuring machines. . . .
Goods classifiable under this provision have a
column one, general rate of duty of 7.4 percent ad
valorem.
9031.49.80: Other. . . . .
Goods classifiable under this provision have a
column one, general rate of duty of 7.4 percent ad
valorem.
9031.80.00: Other instruments, appliances and machines. .
. .
Goods classifiable under this provision have a column
one, general rate of duty of 3.6 percent ad valorem.
To classify merchandise as an "optical appliance" or an
"optical instrument", it must meet the requirements of Additional
U.S. Note 3 to Chapter 90, HTSUS, which states that: "[f]or the
purposes of this chapter, the terms 'optical appliances' and
'optical instruments' refer only to those appliances and
instruments which incorporate one or more optical elements, but
do not include any appliances or instruments in which the
incorporated optical element or elements are solely for viewing a
scale or for some other subsidiary purpose."
The subject CMM is provided for under heading 9031, HTSUS,
as a measuring or checking instruments, appliances and machines.
However, it is claimed that any optics which are contained within
the system are subsidiary and that the merchandise is
classifiable under subheading 9031.80.00, HTSUS, as other
measuring and checking instruments.
A tariff term that is not defined in the HTSUS or in the
Harmonized Commodity Description and Coding System Explanatory
Notes (ENs), which constitute the official interpretation of the
HTSUS, is construed in accordance with its common and commercial
meaning. Nippon Kogaku (USA) Inc. v. United States, 69 CCPA 89,
673 F.2d 380 (1982). Common and commercial meaning may be
determined by consulting dictionaries, lexicons, scientific
authorities and other reliable sources. C.J. Tower & Sons v.
United States, 69 CCPA 128, 673 F.2d 1268 (1982).
In HQ 088941, dated January 16, 1992, Customs, citing
Webster's II New Riverside University Dictionary (1984),p. 1155,
defined "subsidiary" as "[s]erving to supplement or assist . . .
[s]econdary in importance: subordinate." Customs further stated
that the "[t]he meaning of 'subsidiary' has nothing to do with
the amount of time optics are used in the overall use of a
device, but it relates more to the type of task which the optics
perform when being used in the operation of the device." See also
HQ 955230, dated July 12, 1994.
The issue to be determined is whether the optical element
(i.e., the glass moire scales) in the subject CMM are subsidiary
to the actual function of measuring or checking being performed
by the merchandise. In HQ 952000, dated January 28, 1993,
Customs determined that the optics (i.e., a white light
interferometer) contained within an automated system that
performs user-defined metrology measurements on multilayer
integrated product wafers, were integral to the basic function of
the apparatus. Because the optics must be employed for this
function, Customs concluded that the merchandise was classifiable
under subheading 9031.40.90 (then 9031.40.00), HTSUS.
In HQ 954117, dated August 22, 1994, Customs determined that
the Sira Image Automation laser-based inspection system, which
was designed to identify defects in flat homogenous products, was
classifiable as an optical checking instrument under subheading
9031.40.90 (then 9031.40.00), HTSUS. The system incorporated
lenses which focused its laser beam onto the surface of the
products being examined, mirrors which controlled the direction
of the beam and a mirrored, rotating polygon, which caused the
beam to be swept across the product. The lenses, mirrors and
mirrored polygon were necessary to bend, refract, etc., the laser
beam in order to focus or amplify the light onto the product.
The optical components of the system were not, therefore, for
some subsidiary purpose, such as, viewing a scale.
In HQ 954682, dated July 14, 1994, Customs determined that
an Ampoule Inspection Machine (AIM) which was designed for
foreign particulate detection in glass ampoules, was also
classifiable under subheading 9031.40.90 (then 9031.40.00),
HTSUS. The AIM's detection system consisted of lenses and a
light source reflecting through the ampoules and onto a
photodiode array to detect foreign particulate. The use of the
optical elements were found not to be subsidiary because without
them, the AIM could not perform its function of checking.
However, in HQ 950947, dated February 25, 1992, Customs
determined that a Gear Measuring Center (GMC), which was designed
to measure large and heavy workpieces, was classifiable under
subheading 9031.80.00, HTSUS, as it was not an optical measuring
or checking instrument. We held that the GMC's optical elements,
which did not perform any measuring themselves but were used to
set the location of the device's measuring slide, were for a
subsidiary purpose.
The subject CMMs use a tactile probe that performs the
measurement of an article. Like the optical elements in HQ
950947, the glass moire fringe scales do not perform any
measuring themselves, but are used to set the location of the
tactile probe. Based upon this information, we find that the
optical elements are subsidiary to the function of the subject
CMMs. Therefore, the subject CMMs are not optical measuring or
checking instruments and should be classifiable under subheading
9031.80.00, HTSUS.
We note that this proposed revocation would cover only those
CMMs that use a tactile probe and which contain optics that are
not used in performing the measurement. This ruling does not
apply to all CMMs. In determining the classification of CMMs,
Customs will continue to look at the optical elements and their
relation to the function that the machine or instrument is
performing in determining whether the optical elements are
subsidiary. See HQs 952000, 954682, 954117, 950947.
HOLDING:
The VA series CMMs are classifiable under subheading
9031.80.00, HTSUS, which provides for: "[m]easuring or checking
instruments, appliances and machines, not specified or included
elsewhere in this chapter . . . : [o]ther instruments, appliances
and machines. . . ." The column one, general rate of duty is
3.6 percent ad valorem.
EFFECT ON OTHER RULINGS:
HQ 953312, dated June 17, 1993, is hereby revoked. In
accordance with 19 U.S.C. 1625(c)(1), this ruling will become
effective 60 days after publication in the Customs Bulletin.
Publication of rulings or decisions pursuant to 19 U.S.C.
1625(c)(1) does not constitute a change of practice or position
in accordance with section 177.10(c)(1), Customs Regulations [19
CFR 177.10(c)(1)].
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division